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ELRCAllowedELRC Causes 2193 of 2015 and 2194 of 2015 (Consolidated)· [2019] KEELRC 456 (KLR)

Lucy Muingo Kusewa & another v Embassy of Sweden, Nairobi [2019] KEELRC 456 (KLR)

Employment and Labour Relations Court of Kenya
11 October 2019
HWHellen Wasilwa
1,742 words in judgment
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The bottom line

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Kenya's Employment Court paused the embassies' employees' lawsuits until the Court of Appeal decides whether the Embassy of Sweden has diplomatic immunity.

What this practically means

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Executive summary

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The Embassy of Sweden, Nairobi filed a Notice of Motion dated 11 April 2019 under Sections 3 and 12 of the Employment & Labour Relations Court Act and Rules 16(1) and 27(1) of the Industrial Court (Procedure) Rules seeking a stay of proceedings in employment claims by Lucy Muingo Kusewa (Cause 2193/2015) and Renald Mboje Mjomba (Cause 2194/2015). The Embassy had earlier applied to strike out the claims on grounds of sovereign and diplomatic immunity; that application was dismissed by a ruling delivered on 31 July 2017. The Embassy filed a Notice of Appeal on 7 August 2017 and a Record of Appeal on 5 October 2017, and sought a stay pending the hearing of that appeal. The Claimants opposed through a replying affidavit sworn by their Advocate, Victor Kazungu, contending that the appeal had lain unheard for two years, that the application was an abuse of process intended to delay them from accessing the fruits of litigation, and that diplomatic immunity is now restrictive and does not cover private-law employment disputes, citing Bah v Libyan Embassy and S v India. The Court was addressed on the principles for staying proceedings from the Global Tours & Travels and Kenya Power & Lighting line of authority. Delivering its judgment on 11 October 2019, Lady Justice Hellen Wasilwa held that since an appeal against the 2017 ruling was still pending before the Court of Appeal, proceeding with the claim would waste judicial time and render any hearing an academic exercise if the appeal succeeded. The court found the application merited and stayed the proceedings in the claim pending the hearing and disposal of the appeal. No costs order is recorded.

Key legal issues

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01

Whether a stay of proceedings should be granted pending the hearing and determination of an appeal challenging the court's jurisdiction over a foreign sovereign on grounds of diplomatic immunity

Holding

The application for stay of proceedings was granted because an appeal on the threshold jurisdictional/immunity question is pending, and proceeding with the hearing would be an academic exercise if the appeal succeeds.

Reasoning

The court noted that the Respondent had preferred an appeal to the Court of Appeal which is still pending hearing and determination. It accepted the Applicant's submission that the appeal raises arguable issues on sovereign and diplomatic immunity under the Privileges & Immunities Act and the Vienna Convention, and that the outcome would directly impact the suit. Hearing the claim would waste judicial time and possibly render the hearing academic.

p. 3

Legal principles established

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  • Where an appeal against a ruling in the same cause is pending before the Court of Appeal, it is in the interest of justice for the trial court to stay further proceedings rather than proceed with a hearing that may be rendered an academic exercise.

Court orders

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  1. 1.Stay of proceedings in the Claim pending the hearing and disposal of the appeal already filed at the Court of Appeal

Authorities

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Legislation

  • Employment & Labour Relations Court ActSections 3 and 12
  • Industrial Court (Procedure) RulesRules 16(1) and 27(1)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Privileges & Immunities Act
  • Vienna Convention on Diplomatic Relations, 1961
  • United Nations Convention on Jurisdictional Immunities of States and their Property
  • Employment Act

Cases cited (7)

  • Symon Nyamu Muthigani v Charity Wangui Munene
    [2015] eKLR
  • Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000
  • Kenya Power & Lighting Company Limited v Esther Wanjiru Wokabi
    [2014] eKLR
  • Stanley Kangethe Kinyanjui v Tony Ketter & 5 others
    [2013] eKLR
  • Butt v Rent Restriction Tribunal
    [1979] eKLR
  • Bah v Libyan Embassy
    2006 (1) BLR 22 (IC)
  • S v India
    82 ILR 14
On appeal from
Court of Appeal
Notice of Appeal filed 07/08/2017 against ELRC ruling of 31/07/2017 (Record of Appeal filed 05/10/2017)
Jurisdiction invoked
Sections 3 and 12 of the Employment & Labour Relations Court Act and Rule 16(1) and 27(1) of the Industrial Court (Procedure) Rules; inherent powers under Section 3A of the Civil Procedure Act invoked by the Applicant

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lucy Muingo Kusewa & another v Embassy of Sweden, Nairobi [2019] KEELRC 456 (KLR)", Case Analysis (2019). ELRC Causes 2193 of 2015 and 2194 of 2015 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/456/eng@2019-10-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.